Pros and Cons of Durable Power of Attorney vs. Guardianship

Guardianship attorneys can provide assistance when a loved one has become incapacitated. If a person is incapacitated without a plan in place, guardianship may be the only option. However, making advanced plans in case of incapacity is often preferred because of the benefits associated with using tools like powers of attorney. It is important to understand the difference between guardianship and other alternatives, and to weigh the pros and cons, when you make a determination regarding whether you should create an incapacity plan.

Guardianship vs. Power of Attorney

While there are a number of tools that can be utilized to make an incapacity plan, one of the most common ways to plan ahead for incapacity is the creation of a durable power of attorney. When you create a durable power of attorney, you name a trusted person to serve as your agent or your attorney in fact.

Your attorney in fact can be vested with general authority to make decisions on your behalf and manage assets on your behalf. You can also create a healthcare power of attorney and name a healthcare proxy, which could be the same person as your agent who you name for your general power of attorney or which could be a different person you specifically trust to handle health issues. When you name a healthcare proxy, you specifically put your chosen proxy in charge of making medical decisions on your behalf in the event of a medical emergency that renders you unable to communicate.

Your chosen attorney in fact and your healthcare proxy both have a fiduciary duty to act in your best interests in all decision making.

When creating a power of attorney for incapacity plan, it is important to make your power of attorney durable so it will remain in effect when you become incapacitated. A power of attorney can be created for other purposes besides incapacity planning, and if your power of attorney is not durable, your grant of authority will no longer be valid when you need it.

If you have not created a power of attorney, then guardianship proceedings could become necessary upon your incapacity to determine who will act on your behalf. Your loved ones will need to go to court to have you declared incapacitated and the court will appoint someone to act for you.

Pros and Cons of Guardianship vs. Durable Power of Attorney

Creating a durable power of attorney or petitioning for guardianship are two different ways to deal with incapacity. However, there are substantial differences between the options and there are pros and cons of each option.

The biggest benefit to guardianship is guardianship proceedings can be initiated after a person is already incapacitated. Creating a power of attorney is obviously not possible when someone is unable to speak or act on his own. If guardianship proceedings did not make it possible to obtain decision-making authority and control over the personal and financial affairs of an incapacitated person, there would be no way to provide for and protect someone who had become incapacitated without an advanced plan.

There are some substantial downsides to guardianship as well. Going to court when a loved one has just become sick or hurt can be stressful, costly, and time consuming. A delay in a determination of who should be guardian can cause financial loss if assets are not managed appropriately in the interim before a guardian is appointed. The incapacitated person has no say in who serves as guardian, and the court may appoint someone who the incapacitated person would not have selected as an agent. The court also remains involved in overseeing the actions of the guardian, which can be undesirable in families that would prefer to keep their affairs more private.

Creating a power of attorney, on the other hand, can have substantial advantages. When a power of attorney is put into place, it is possible for the creator to essentially maintain autonomy longer by taking control over who makes decisions on his behalf. There is no dispute over who should act on behalf of the incapacitated person, and there is no delay in the appropriate person taking control over decision-making. The downside is, a power of attorney must be created before incapacity happens, and many people don’t like to think about becoming incapacitated.

Getting Help from Guardianship Attorneys

If you need assistance creating a power of attorney, Biddinger & Estelle is here to help. If you live in Michigan’s shoreline communities or surrounding areas and your loved one has become incapacitated without an advanced plan in place, our Guardianship attorneys can also assist you with guardianship proceedings. Give us a call at (989) 872-5601 or contact us online today to find out more.

Rachel is originally from Walled Lake, Michigan. She graduated from Walled Lake Central High School in 2006. After graduation she attended Central Michigan University in Mount Pleasant, where she earned her degree in History and Social Sciences in 2010. Rachel then went on to attend Thomas M. Cooley Law School in Ann Arbor, graduating Magna Cum Laude. Rachel is a member of the State Bar of Michigan and the American Academy of Estate Planning Attorneys. Rachel now resides in Cass City.

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